What NOT to Do When You're Sued for Malpractice

For physician defendants · 7 min read

Most malpractice cases are won or lost not on the medicine but on what the defendant physician did in the days and weeks after being served — while frightened, and acting on instinct. The problem is that a good physician's instincts, in this one situation, point almost exactly the wrong way. Here are the nine reactions to resist.

1. Do NOT touch the chart

This is the one that turns a defensible case into an indefensible one.

The urge to "clarify," add a note, or fix a typo in the record after you learn of a claim is overwhelming — and it is the single most dangerous thing you can do. Electronic records are audit-trailed; every edit is time-stamped. A late alteration, even an innocent one, hands the plaintiff a consciousness-of-guilt story that can sink a case that was otherwise winnable on the facts. Whatever is in the record is the record. Leave it exactly as it is.

2. Do NOT contact the plaintiff or the family

Reaching out to explain, apologize, or "make it right" feels human and decent. Once litigation has begun, it is a mistake — anything you say can be used, and it can be construed as an admission or as harassment. All communication now runs through counsel.

3. Do NOT discuss the case with anyone outside privilege

Not the hallway. Not your best friend at the hospital. Not the group text. Conversations with colleagues are generally not privileged, which means that colleague can be deposed about what you said. The privileged circle — your attorney, and people your attorney designates — is the only place the facts of the case get discussed. Emotional support is fine and necessary (see below); the facts stay inside privilege.

4. Do NOT post anything, anywhere

No social media, no physician forums, no anonymous venting on Reddit or Doximity. Plaintiff's counsel looks for it, "anonymous" is rarely anonymous, and a single frustrated post can become an exhibit. Assume anything you type about the case will be read aloud at trial.

5. Do NOT ignore the deadline

A lawsuit comes with a hard clock — there is a limited window to respond, and missing it can lead to a default judgment. The instinct to avoid the terrifying envelope is understandable and dangerous. The response to being served is to act, not to freeze.

6. Do NOT delay notifying your carrier

Report the claim to your malpractice carrier immediately — most policies require prompt notice, and late notice can jeopardize coverage. Your carrier assigns defense counsel and starts the machine that protects you. This is the first constructive thing to do, and it should happen within days.

7. Do NOT try to be your own lawyer

You are brilliant in your specialty; litigation is not your specialty. Physicians who freelance — deciding what to produce, what to say, how to frame things — routinely damage their own defense. Let defense counsel run the legal strategy. Your job is to be the best-prepared witness they've ever had.

8. Do NOT go into your deposition unprepared

The deposition is where most defendant cases are actually decided, and "I'll just tell the truth and it'll be fine" is how good doctors get hurt. Truth-telling is necessary but not sufficient — the skill is answering only what's asked, not guessing, staying consistent with the chart, and not being led. That is a rehearsed skill, not an innate one. See why you have to rehearse, not just read, and the reptile questions designed to trap you.

9. Do NOT let it convince you you're a bad doctor

A claim is not a verdict on your competence or your character, and most claims never result in a payout. Letting the lawsuit define you leads to defensive medicine, burnout, and — practically — a rattled, apologetic deposition witness. Protect your head. (More on that: the emotional side of being sued, and how to function.)

What to do instead — the short version

1. Preserve everything exactly as it is. Touch nothing.
2. Notify your malpractice carrier immediately.
3. Say nothing about the facts outside the privileged circle your attorney defines.
4. Meet every deadline; let counsel run the legal strategy.
5. Prepare — really prepare — for your deposition.
6. Protect your mental health so you show up composed.

For the full early roadmap, see our physician's survival guide for the first 90 days.

General information, not legal advice. Your defense attorney directs your case and has the final word on anything specific to it.

Bottom line

The mistakes that lose malpractice cases aren't exotic — they're the ordinary, human reactions of a scared, decent physician acting on instinct: fix the note, explain to the family, vent to a colleague, wing the deposition. Recognize the instinct, do the opposite, and let your defense — and your preparation — do their job.